McCarter v. La Rock

212 A.D. 843

Opinion

Award affirmed, with costs to the State Industrial Board, on the authority of Bandassi v. Molla (200 App. Div. 266; 234 N. Y. 554). All concur, except Van Kirk and McCann, JJ., dissenting on the ground that the " statute is not applicable to an injury which arises through a danger or hazard dissociated from or not inherent in the nature of the employment as its source and to which the employee would have been equally exposed apart from the employment. This conclusion is not affected by the fact that the employee would not, except for the employment, have been where such danger or hazard existed. An injury does not arise out of the employment unless the hazard causing it is, within rational apprehension, an attribute of or peculiar to the specific duties of the employment. The fact, that the contract of employment exists and necessitates the acts of performance may or will occasion for the employee risks not reasonably incidental to the character of the work or employment. For the injuries caused by or flowing from those risks the statute does not direct or permit compensation.” (Matter of Kowalek v. N. Y. Cons. R. R. Co., 229 N. Y. 489, 494. See, also, Laurino v. Donovan, 183 App. Div. 168, also reported on second appeal, 186 id. 387, where a distinction is made between explosion caused by a percussion cap found on the premises and one found off the premises.)